No. 79-99
IN THE SUPREME COURT OF THE STATE OF MONTANA
1980
MILON L. DICKERSON,
Petitioner and Appellant,
VS .
ANN S. DICKERSON,
Respondent and Respondent.
Appeal from: District Court of the Eighteenth Judicial District,
In and For the County of Gallatin.
Honorable Joseph B. Gary, Judge presiding.
Counsel of Record:
For Appellant:
Berg, Morgan, Coil and Stokes, Bozeman, Montana
For Respondent:
Bennett and Bennett, Bozeman, Montana
Submitted on briefs: April 25, 1980
Decided : JBt 2 6 1980
Filed:
JULM
i$@
Mr. Justice John C. Sheehy delivered the opinion of the
Court.
This is an appeal by Milon L. Dickerson from the
property distribution in the parties' decree of dissolution
of marriage granted by the Hon. Joseph B. Gary in the Eighteenth
Judicial District Court, Gallatin County.
Milon L. Dickerson and Ann S. Dickerson were married at
Bozeman, Montana on April 6, 1957. They have three children:
two daughters, Merianne Dickerson and Carrie Dickerson, and
one son, Bruce Dickerson. All of the Dickerson children are
over eighteen years of age.
Before the dissolution of their marriage, the Dickersons
were a typical Montana ranch family, sharing in the duties
of maintaining a hay/cattle operation and a dairy ranch
fifteen miles southwest of Bozeman, Montana. Milon Dickerson
handled most of the farm work. Ann Dickerson did farm
chores and supplemented the family's income by working as a
bookkeeper. The Dickersons began their ranch in 1961 by
leasing ranch property from the parents of Ann Dickerson.
In 1971, Ann Dickerson's mother, Jean Stimson, transferred
the ranch property to Ann, half by gift and half at the
value of $200 per acre, secured by a mortgage upon which Ann
and Milon Dickerson were liable. This mortgage was paid by
the Dickersons after it was partially forgiven by gifts by
Stimson to the Dickersons. The Dickerson ranch property presently
includes approximately 200 acres of land held partially in
joint tenancy and the remainder by Ann ,Dickerson alone.
In addition to the ranch property, the Dickersons own
livestock valued at $144,880.00, equipment valued at $13,314.55,
a truck and automobile valued at $1,800.00 each and mis-
cellaneous personal property. Each of the Dickersons separately
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own personal property. Milon Dickerson owns his own tack,
shop tools, bank accounts, A. I. inventory and livestock
feed. Ann Dickerson owns her own bank accounts and is the
sole beneficiary of a trust established by her mother. The
Dickersons owe $69,861.76 in debts.
Milon and Ann Dickerson were unable to agree on a
property division. After a trial without jury, judgment was
entered on October 9, 1979, dissolving the Dickerson marriage
and incorporating the findings of fact and conclusions of
law previously made by the court. The District Court ordered
that Milon and Ann Dickerson be individually awarded the
property separately owned by each of them. Milon Dickerson
was awarded the parties' truck and Ann Dickerson was awarded
the automobile. Except for a $40,000.00 gift of property to
Ann Dickerson, the District Court held the remaining Dickerson
property was marital property and should be divided equally.
The District Court received conflicting testimony as to
the value of the Dickerson ranch land. Ann Dickerson testified
the land was worth $1,000.00 per acre. Norman C. Wheeler of
Belgrade, Montana, a local real estate appraiser and consultant,
testified in behalf of Milon Dickerson, estimating that a
portion of the Dickerson ranch was worth $3,000.00 per acre
and the rest of the ranch was worth $2,000.00 per acre.
Wheeler testified that there is a high demand in the Gallatin
Valley for gentlemen-type farms and ranches and that this
demand establishes the area real estate market.
The District Court adopted the $1,000.00 per acre value
for the ranch property and in finding of fact no. 11, the
court divided the marital property as follows:
ANN DICKERSON
Real estate (160 acres) $160,000.00
Household furniture 2,250.00
Jewelry
Cash from husband
TOTAL TO WIFE
MILON DICKERSON
Real estate (40 acres)
Livestock
Equipment
Less: Debts $69,861.76
Cash to
wife - 916.00 70,777.76
TOTAL TO HUSBAND $125,166.79
In a memorandum to the finding of fact and conclusions
of law, the District Court explained its selection of a
$1,000.00 per acre value for the ranch property. The
District Court provided:
"In arriving at the appraisal of $1,000 per
acre, the Court adopted the appraisal of the
respondent as the major owner of the real estate.
I will grant that the petitioner's appraiser appraised
the property considerably in excess of this, ranging
from $2,000 to $3,000 per acre, but this was subject
to an assumption that it would be sold for subdivision
purposes. ...
"At the post-trial conference, counsel for the
petitioner indicated a displeasure with the concept
that the Court was adopting and felt that adopting
the appraisal of the property utilized by the
respondent was improper. However, if you examine
the income tax records, it is obvious that the
property does not have an earning capacity based
on any $2,000 to $3,000 per acre valuation.. . ."
One issue is presented by appellant on appeal: Did the
District Court err in its valuation of the ranch property,
resulting in a substantially inequitable division of the
marital assets?
The disposition of property owned by a husband and wife
in a dissolution of their marriage is governed by section
40-4-202, MCA.
"In a proceeding for dissolution of a marriage
.
. . the court ...shall ..
. finally equitably
apportion between the parties the property and
assets belonging to either or both, however and
whenever acquired and whether the title thereto
is in the name of the husband or wife or both. . ."
This Court's scope of review of a District Court
dissolution of marriage property division was recently
restated as follows:
"A District Court has far-reaching discretion
in resolving property divisions, and its judgment
will not be altered unless a clear abuse of
discretion is shown. (Citation omitted.) The
test for reviewing the District Court's discretion
is: Did the District Court in the exercise of
its discretion act arbitrarily without employment
of conscientious judgment, or exceed the bounds
of reason in view of all the circumstances?"
(Citation omitted.) In Re Marriage of Jacobson
(1979)I - Mont
St.Rep. 1773, .
6
7
1
. , 600 P.2d 1183, 1186, 36
This Court has ordered the District Court to reconsider
its property division if the District Court was clearly
unadvised of the current value of the parties' assets, or if
the District Court ordered a substantially inequitable
division of the parties' assets. In Re Marriage of Brown
,
(1978), - Mont. - 587 P.2d 361, 35 St.Rep. 1733; Kruse
v. Kruse (1978), Mont . , 586 P.2d 294, 35 St.Rep.
In Downs v. Downs (1976), 170 Mont. 150, 551 P.2d 1025,
we directed the District Court to hold a new trial because
the evidentiary record contained no reliable estimate of the
husband's net worth. In Martinez v. Martinez (1978),
Mont. , 573 P.2d 667, 35 St.Rep. 61, we vacated the
disposition of property ordered by the District Court and
remanded the case for a new hearing because the District
Court had failed to ascertain the present values of property
owned by the parties.
Substantially inequitable property divisions were
reversed by this Court in In Re Marriage of Berthiaume
(19771, 173 Mont. 421, 567 P.2d 1388; and In Re Marriage of
Brown, supra. In Brown, the District Court awarded the wife
$25,000.00 for her interest in a $350,000.00 ranch, the
major marital asset. In Berthiaume, the District Court
found that the parties' marital property should be equally
divided, but the court awarded the husband over $17,000.00
of the marital property and awarded the wife less than
$1,000.00 of the property. In both cases, one spouse was
awarded over 90 percent of the marital property. Both
property decrees were held to be substantially inequitable
and were reversed.
The case now before the Court is different from Downs,
Martinez, Brown or Berthiaume. In this case, evidence was
presented to the District Court regarding the present net
worth of the parties' property. Extensive evidence was
received by the court including the testimony of the parties,
copies of the parties' tax returns, a listing of the parties'
property, and an appraisal of the partiesf real property.
No substantially inequitable division of property was ordered
by the District Court. The court, after ascertaining the
parties' net worth, awarded the wife assets worth approximately
$165,000.00 and awarded the husband assets worth approximately
$195,000.00 while ordering him to pay the debts. Except for
the $40,000.00 gift to Ann ~ickerson,the Dickerson marital
property was divided equally. This property division is not
substantially inequitable.
The property valuation issue presented in this case is
similar to the property valuation issue presented in ~iegalke
v. Biegalke (1977), 172 Mont. 311, 564 P.2d 987. In ~iegalke,
the appellant contended that an inaccurate property appraisal
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was used by the District Court to divide the parties prop-
erty. In the case now before us, the record indicates that
the District Court was presented with conflicting evidence
of the value per acre of the Dickerson ranch. Testimony
regarding the per acre value of the ranch was given by the
respondent and by an appraiser, an expert witness testifying
in behalf of the petitioner. The District Court, as the
trier of fact in this trial without a jury, accepted the
value of the respondent and rejected the expert's valuation.
This is not reversible error. As we explained in Biegalke,
". . . the trier of the facts has the discretion to give
whatever weight he sees fit to the testimony of the expert
from 0 to loo%." Biegalke, 172 Mont. at 317, 564 P.2d at
990. Unless a finding of fact is clearly erroneous, it
cannot be set aside by this Court. See, Rule 52(a), M.R.Civ.P.
The judgment of the District Court is affirmed.
,*--
Justice
We Concur:
Chief Justice